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Downloaded from Brill.Com10/02/2021 07:23:58PM Via Free Access 152 MONIKA KARENIAUSKAITĖ LITHUANIAN HISTORICAL STUDIES 20 2015 ISSN 1392-2343 PP. 151–182 THE CRIMINAL JUSTICE SYSTEM IN SOVIET RUSSIA AND THE USSR (1917–1953): EMERGENCE, DEVELOPMENT AND TRANSFER TO THE LITHUANIAN SSR Monika Kareniauskaitė ABSTRACT The aim of the article is to analyse the Soviet definition of crime, the structure and logic of Soviet criminal law, and the system of criminal prosecution developed by the Bolsheviks after the October Rev- olution of 1917, consolidated during the NEP and collectivisation, and reformed by Stalin and Andrey Vyshinsky in the mid-1930s. The research also examines the impact that these concepts, ideas, institutions, legal norms and practices had on newly occupied Soviet colonies, focusing on the case of the LSSR. First of all, the research demonstrates that the main laws, institutions and actors in the Soviet criminal justice system which functioned until the mid-1950s without radical changes were invented and defined just after the Revolution, Civil War and NEP. Impacted by Marxist philosophy, by the traditional Russian peasant mentality and pre-revolutionary Bolshevik experiences, the early Bolshevik criminal justice system already had features which became crucial to the imple- mentation of Stalinist mass repressions. For instance, the criminal code of the RSFSR defined a crime as any act or omission dangerous to the Soviet order and state, but not as an act or omission prohibited by law – this was possible due to the ‘principle of analogy’. The criminal code of 1926, based on Bolshevik legal norms from the period of the Revolution and the Russian Civil War, was not replaced during the legal reform of the mid-1930s. The very same system was transferred to the Lithuanian SSR after the occupation. Despite some institutional differences, the main features did not vary from that of the RSFSR, and the two were linked in the common system, the Russian one having hierarchical superiority. ‘Union’ laws prevailed over republican ones. But in the LSSR, the process of colonisation in the field of the criminal justice system was difficult, due to the strong armed anti-Soviet resistance, and the lack of well-educated and loyal Soviet legal personnel. Downloaded from Brill.com10/02/2021 07:23:58PM via free access 152 MONIKA KARENIAUSKAITĖ Introduction The aim of the article is to investigate the nature and content of the legal concepts, ideas, institutions and criminal prosecution practices developed by the Bolsheviks in the period of the October Revolution and the Civil War. It examines the impact they had on the further evolution of the Soviet criminal justice system until the end of Stalinism, both at the centre of the Soviet empire (Soviet Russia 1) and on its peripheries (Soviet Lithuania 2). The hypothesis of the analysis states that it was the Revolutionary and Civil War period rather than Stalinism that exerted a decisive impact on the further development of criminal law and the criminal justice system in the USSR. In the contemporary legal and historical tradition, two definitions of the Soviet legal and criminal justice system exist: 1) it was more a tool of totalitarian power designed to carry out repressions and implement Bolshevik social engineering than a sui generis system; 2) Soviet criminal law and the model of the criminal justice system were designed as a separate legal sub-system, a part of so-called ‘socialist law’, together with the other sub-systems of it (such as, for instance, Soviet civil law). 3 Studies by Peter H. Solomon Jr. and Nicolas Werth are examples of the tradition of the first type. They focus on repressive aspects of the Soviet criminal justice system. 4 The competing discourse, on the contrary, takes the idea of the existence of Soviet law for granted, and therefore no longer questions its very existence, but focuses mainly on the content of Soviet law. Researchers such as Ivo Lappena 5 and Harold J. Berman 6 analyse legal definitions and concepts, paying less attention to penal practices. 1 Later referred to as the RSFSR, or Russian Soviet Federative Socialist Republic. 2 Later referred to as the LSSR, or Lithuanian Soviet Socialist Republic. 3 A. Ostroukh, ‘Russian Society and its Civil Codes: A Long Way to Civilian Civil Law’, Journal of Civil Law Studies, vol. 6, Issue 1, summer (2013), p. 374. 4 P.H. Solomon Jr., Soviet Criminal Justice under Stalin (Cambridge, 1996); Н. Верт, Террор и безпорядок. Сталинизм как система (Москва, 2010). 5 I. Lappena, Soviet Penal Policy (Denmark, 2000), last visited on 11 May 2016, http://www.ivolapenna.org/verkoj/books/soviet.pdf. 6 H.J. Berman, ‘Principles of Soviet Criminal Law’, The Yale Law Journal, vol. 56, no 5, May (1947); Idem, Justice in the USSR. An Interpretation of Soviet Law (London, 1987). Downloaded from Brill.com10/02/2021 07:23:58PM via free access THE CRIMINAL JUSTICE SYSTEM IN SOVIET RUSSIA AND THE USSR (1917–1953) 153 Both approaches, however, have limitations, which the research presented in the present article seeks to avoid. The first approach usually focuses only on political crimes and extra-judicial institu- tions, 7 and forgets to take into account the usual system of courts and non-political criminality. The second approach deals mainly with the content of legal definitions and norms, thus remaining in the field of ideas, and in many cases ignoring their practical implementations. 8 Seeking to avoid these limitations, the research design of the analysis, presented in this article, is formulated using a wider per- spective. It is based on the research design strategy developed by the historian Paul R. Gregory. Though his main focus is on political repressions, the research is deeply contextualised, and the system of ordinary courts is not missed. 9 Therefore, this article, as well, analyses the Bolshevik criminal justice system taking into consid- eration its repressive nature and the dimension of political crime. But also, an attempt has been made to reveal what lay beyond the horizon of repressions. The methodology of the research is based on the following idea: the analysis of a certain criminal justice system must start from the definition of the concept of crime. To understand the general picture of the criminal justice mechanism, several aspects must be analysed: 1) law-making (the legal norms), 2) law-breaking (the actual crime in a concrete society and its functioning definition), 3) law-enforcement (the structure of institutional actors in the field of criminal justice and the sphere of criminal prosecution). 10 Also, taking into consideration the specific structure of the Soviet legal system where the legal theory may have varied from legal norms, 11 the research is divided into four levels: a) The ideological level and the legal theory, the Bolshevik crim- inological discourse and Bolshevik definition of the categories of ‘law’ and ‘crime’. 7 As, for instance: Сталинизм в советской провинции: 1937–1938 гг. Массовая операция на основе приказа № 00447, cост. М. Юнге, Б. Бонвеч, Р. Биннер, (Москва, 2009). 8 G.C. Guins, Soviet Law and Soviet Society (The Hague, 1954), p. 1. 9 P.R. Gregory, Terror by Quota: State Security from Lenin to Stalin (London, 2009), p. 17. 10 R.L. Akers, Criminological Theories: Introduction and Evaluation (London, 1999), p. 2. 11 Berman, ‘Principles of Soviet Criminal Law’, p. 803. Downloaded from Brill.com10/02/2021 07:23:58PM via free access 154 MONIKA KARENIAUSKAITĖ b) The level of legislation, or the field of criminal laws and norms. c) The institutional level of criminal prosecution, or the field of actors responsible for dealing with crime in the Soviet system. d) The level of practice in law enforcement and law breaking, or the process of criminal prosecution and criminal practices in society. Thus, the article investigates how Bolshevik concepts of crime and law were defined and functioned at all levels at the centre of the USSR (the RSFSR) and on its periphery (the LSSR) until the end of Stalinism. The crime in Soviet legal theory: from ‘nihilism’ to the ‘restoration of law’ According to Paul R. Gregory, the system of Soviet criminal justice ‘was in place well before Stalin’s one-man rule’. 12 The birth of the Bolshevik understanding of crime and law was a result of combining three main factors: the traditional Russian social organisation and mentality, Bolshevik empirical experiences, and Marxist philosophy. The traditional Russian social organisation and Orthodox law produced the concept of ‘joint responsibility’ (круговая порука), 13 which was later reflected in Bolshevik law. In traditional Russian rural communities, all members were highly interdependent in the organisation of labour and other practices. 14 The level of individ- 12 Gregory, Terror by Quota: State Security from Lenin to Stalin, p. 1. 13 This term literally means the ‘circular surety’, but is better translated as ‘joint responsibility’. Though the concept and idea of joint responsibility impacted Bolshevik legal thought, and later legislation and legal practices, the term itself was not used by the Bolsheviks in legal theory and, later, legislation. See more in: G. Hosking, Rulers and victims: the Russians in the Soviet Union (London, 2006), p. 11. 14 It is important to stress that krugovaia poruka was a concept shaping the traditional mentality of the Russian Empire’s rural areas, and a mechanism helping to collect and administrate taxes from peasants living in an obshchina (община). An obshchina was a village with communal ownership of land, governed by the full assembly of the community, called the skhod (сход). Such collective responsibility was an important part of the everyday practices of traditional Russian rural com- munities, and therefore influenced their understanding about many different areas of social organisation and everyday life, including understanding of crime and guilt. This attitude, that the whole community shared responsibility for a crime by one individual, was well reflected by the Russian intelligentsia of the 19th century and by the intellectual discourse of this period, including, for instance, the novel The Brothers Karamazov by Fyodor Dostoyevsky (Федор Михайлович Достоевский).
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